State Sanctioned Violence: A legal analysis of Police Brutality during Protests in Kenya

 

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The Kenya Police was formed in the 19^th century and over the years it has served as a tool of repression and oppression to citizens. Use of force is highly ingrained in policing culture. Although peaceful protests are meant to be a platform for people to voice their concerns to the government, many times when the police are called, lives are lost and property is damaged. Protests are essential in the running of a democracy; it is one of the ways in which citizens voice their opinions on how the government should be run.

The general premise of this article is that often over the years, Kenyans have shown up to voice their grievances against the government, these protests are largely peaceful and violence is often brought about by the police and this is most evident from the recent protests ongoing in Kenya that started against the Finance Bill 2024 and later progressed to fight against corruption by the government. Similarly, the Anti-Femicide protests earlier this year were very peaceful and it is important to note that the police were not seen during these protests.

Historically in Kenya, the police have always been used against citizens advocating for their rights. The British colonialist used the police to suppress anti-colonialist efforts.  The Moi government also used the police to suppress the multiparty democracy efforts. This is a textbook approach as old as Kenya itself and years later, even with the protections of the Constitution of Kenya 2010, citizens still bear the brunt of police brutality. The question then is why? Is it the common challenge that arises each time where the law and its enforcement move in parallel directions?

It is also important to note that police violence during peaceful protests is a global issue as seen from the Black Lives Matter(BLM) movement in the United States. Law enforcement organizations have regularly used disproportionate force to put an end to nonviolent protests, including the use of tear gas, rubber bullets, and physical attacks. These behaviors frequently increase tensions, erode public confidence in law enforcement, and violate basic human rights.

 

The Constitution of Kenya provides that every person has the right  peaceably and unarmed, to assemble, to demonstrate, to picket and to present petitions to public authorities.[1]The constitution also provides that the state  has a responsibility to ensure that the right of those peacefully gathered to protest are respected  and protected. The right to protest also includes the freedom of expression and freedom of association.[2] This right allows citizens an opportunity to express their voices to the government and their by participating in their governance. The right to protest however, is not absolute, in exercising this right, citizens ought to ensure that they don’t infringe on the rights of others or interfere with public order or the operation of government. The Public Order Act 2012 regulates protests, and it states that where one is organizing a protest they need to notify the nearest police station at least three days prior to the protest on their intention to do so.[3]

With regard to the role that the police play, The National Police Service Act 2011, provides for the instances when police can use force. For instance, where it is ineffective to use non-violent means, when force is used, the force has to be proportional to the seriousness or resistance posed by the person to whom it is used against. The act also provides that in case of injuries posed by the use of force ,the police have a responsibility to provide  medical assistance and to notify the close relatives of the injured person.[4] Aside from this, the act provides that police across all ranks have power and discretion in their enforcement of the law, this discretion is a fundamental aspect necessary for fair and effective policing.[5]  Although discretion is important ,oversight is necessary as granting such power without regulation leads to more harm than good. This is the role that Independent Policing and Oversight Authority (IPOA) serves.[6]Ideally,, IPOA is meant to serve as oversight for the work done by the police including investigating deaths and injuries caused by  police force.[7]

These are some of the changes that The 2010 Constitution upon its entry into force was meant to make to ensure a reform of the police force to a police service.[8]The Constitution provided for an operationally independent police service led by the Inspector General, the service was to be guided by the principles of human rights, non-partisanship, professionalism and accountability to the public.[9] However, fourteen years later the relationship the police have had with citizens is that of punitiveness, with the police understanding that their role is to punish those citizens who are seen as a threat to law and order. It is clear that the public has lost faith in the police due to the fact that the police have often been used to violate human rights under the direction of politicians. Even with legal limitations on the use of force, regulating its use remains extremely difficult, especially when protests are taking place.

It is evident that the laws and regulations governing the use of force and police officers are not sufficiently ensuring that police do not employ excessive force when maintaining public order. Force should only be applied sparingly and proportionately to the circumstances, and it should be stopped as soon as there is no longer a threat to people's lives or property. Guns should only be used in violent gatherings in accordance with the law. Integrity is a crucial quality to exhibit when working as a police officer. The police lose credibility when they behave unethically, and without credibility, they are ill-suited to perform their jobs. It would be essential for uniformity if the National Police Service had a dedicated directorate or unit tasked with maintaining public order and trained in particular crowd management techniques. Officers must receive further training in recognizing rioters and competently managing the people during disturbances.[10]

Additionally, there must be appropriate and distinct avenues for reporting instances of police violence without fear of retaliation.[11] For the purpose of conducting a thorough investigation and holding officers accountable for their actions, it will be necessary to reinforce the supervision systems now in existence, such as the police IPOA. With these safeguards in place, police misconduct will not go unpunished and they will face legal repercussions for any activities they take that may not fall under the purview of the law.

 

In conclusion, the culture of police brutality during peaceful protest is a long-standing issue dating back to the colonial period, therefore it is important to acknowledge that this makes it even more complex and may therefore require as much time as it took to create it, to remove it from our legal system and society at large ,in order to foster a police service that respects and upholds human rights. However, steps such as rethinking our approach to police training on crowd control and reinforcing supervision systems may go a long way in ensuring that we achieve this goal sooner rather than later.

 By Fleria Atieno

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[1] The Constitution of Kenya 2010, Art 37

[2] The Constitution of Kenya, art 34 and art 36

[3] The Public Order Act 2012,sc 5

[4] The National Police Service Act  2011, sc 61

[5] ibid

[6] Independent Policing and Oversight Authority Act 2012, sc 3

[7] Ibid

[8] Mutuma Ruteere,Policing Protests in Kenya ,Centre for Human Rights and Policy Studies,(2019)

[9] The Constitution of Kenya 2010,art 243

[10] Duncan Onyango and Petronilla Otuya, Police Perceptions, Attitude and Preparedness in Managing Public Assemblies, Centre for Human Rights and Policy Studies, (2019)

[11] ibid